Press Releases

Democracy.io Streamlines a Complicated System into a Quick and Easy Process

San Francisco - The Electronic Frontier Foundation (EFF) has created a new tool that makes emailing your congressional lawmakers a quick and easy process. Democracy.io simplifies and streamlines the current fractured system for contacting lawmakers, allowing you to message your two senators and your representative from a single website.

“Democracy thrives when the voices of Internet users are heard in Washington. The easier it is for you to reach your member of Congress, the better,” said EFF Activism Director Rainey Reitman. “With Democracy.io, you can send one message to both your senators and your representative right away, instead of tracking down three different forms on three different websites. We are proud to open this tool to the public and increase lawmakers’ awareness of how their constituents really feel.”

At Democracy.io, you enter your home address, and a quick look-up provides the names of your three congressional lawmakers. You then can choose any or all of those lawmakers, and send them whatever message you’d like. Democracy.io follows best practices for protecting the privacy of users, and all of the code is licensed under the AGPL, which means people can create new versions with different features. EFF does not control or influence the messages sent through Democracy.io.

“Being able to contact your elected representatives is a critical component of a healthy democracy. Making sure that it’s a simple and rewarding process should be one of Congress’s priorities, but unfortunately it doesn’t seem to even be on their radar,” said EFF Tech Fellow Sina Khanifar. “Advocacy organizations that can afford it have long had access to tools for delivering bulk constituent messages, but those solutions are expensive for regular citizens. Democracy.io helps to fill in that gap by giving people an easy way to have their voices heard in Washington. Hopefully the tool will also remind lawmakers that they can and should be building sites like these already."

EFF wrote the backend system that delivers the messages to Congress with inspiration from work by the Participatory Politics Foundation. Delivery is made possible by the open source “contact-congress” dataset that was started by the Sunlight Foundation and completed with help from over 100 EFF volunteer web developers. The dataset is now maintained by EFF, the Sunlight Foundation, and Action Network.

Poitras, Filmmaker Behind Snowden Documentary CITIZENFOUR, Searched and Questioned Every Time She Entered U.S. From 2006 to 2012

Washington, D.C. ­– Academy and Pulitzer Prize Award-winning documentary filmmaker Laura Poitras sued the Department of Justice (DOJ) and U.S. transportation security agencies today demanding they release records documenting a six-year period in which she was searched, questioned, and often subjected to hours-long security screenings at U.S. and overseas airports on more than 50 occasions. The Electronic Frontier Foundation (EFF) is representing Poitras in a Freedom of Information Act (FOIA) lawsuit against the Department of Homeland Security, DOJ, and the Office of the Director of National Intelligence.

“I’m filing this lawsuit because the government uses the U.S. border to bypass the rule of law,” said Poitras. “This simply should not be tolerated in a democracy. I am also filing this suit in support of the countless other less high-profile people who have also been subjected to years of Kafkaesque harassment at the borders. We have a right to know how this system works and why we are targeted.”

Poitras is a professional journalist who won an Academy Award this year for her documentary film “CITIZENFOUR” about NSA whistleblower Edward Snowden, shared in the 2014 Pulitzer for Public Service for NSA reporting, and is a recipient of a MacArthur Foundation “genius” grant. During frequent travel from 2006 to 2012 for work on her documentary films, Poitras was detained at the U.S. border every time she entered the country.

During these detentions, she was told by airport security agents that she had a criminal record (even though she does not), that her name appeared on a national security threat database, and, on one occasion, that she was on the U.S. government’s No Fly List. She’s had her laptop, camera, mobile phone, and reporter notebooks seized and their contents copied, and was once threatened with handcuffing for taking notes during her detention after border agents said her pen could be used as a weapon. The searches were conducted without a warrant and often without explanation, and no charges have ever been brought against Poitras.

After years of targeting by security agents, Poitras last year filed FOIA requests for records naming or relating to her, including case files, surveillance records, and counterterrorism documents. But the agencies have either said they have no records, denying or ignoring her appeals for further searches, or haven’t responded at all to her requests. For example, the FBI, after not responding to Poitras’ FOIA request for a year, said in May it had located only six pages relevant to the request—and that it was withholding all six pages because of grand jury secrecy rules.

“The government used its power to detain people at airports, in the name of national security, to target a journalist whose work has focused on the effects of the U.S. war on terror,” said David Sobel, EFF senior counsel. “In refusing to respond to Poitras’ FOIA requests and wrongfully withholding the documents about her it has located, the government is flouting its responsibility to explain and defend why it subjected a law-abiding citizen—whose work has shone a light on post-9/11 military and intelligence activities—to interrogations and searches every time she entered her country.”

The detentions ended in 2012 after journalist Glenn Greenwald published an article about Poitras’ experiences and a group of documentary filmmakers submitted a petition to DHS protesting her treatment.

“We are suing the government to force it to disclose any records that would show why security officials targeted Poitras for six years, even though she had no criminal record and there was no indication that she posed any security risk,” said Jamie Lee Williams, an EFF attorney and the organization’s Frank Stanton Legal Fellow. “By spurning Poitras’ FOIA requests, the government leaves the impression that her detentions were a form of retaliation and harassment of a journalist whose work has focused on U.S. policy in the post-9/11 world.”

Poitras’ documentary films include the 2006 Oscar-nominated “My Country, My Country”­—a story about the Iraq war told through an Iraqi doctor and political candidate in Baghdad who was an outspoken critic of U.S. occupation. Poitras also directed and produced the Emmy-nominated “The Oath,” a 2010 documentary film about Guantanamo Bay prison and the interrogation of Osama bin Laden’s former bodyguard days after 9/11. Poitras’ latest film, “CITIZENFOUR,” about Snowden and NSA mass surveillance, earned her a Director’s Guild of America Award and an Oscar.

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Ethiopia Claims that Foreign Governments Have Legal Right to Wiretap Americans

Washington, D.C. - On Tuesday, July 14, at 2 pm, the Electronic Frontier Foundation (EFF) will urge a federal court to allow an American to proceed with his lawsuit against the Ethiopian government for infecting his computer with secret spyware, wiretapping his private calls, and monitoring his family’s every use of the computer for weeks on end.

EFF is representing the plaintiff in this case, who has been given permission by the court to allow him to use his pseudonym Mr. Kidane in order to protect the safety and well-being of his family both in the United States and Ethiopia. The Ethiopian government’s U.S. lawyers have asked to have the case dismissed, claiming that foreign governments have a right wiretap Americans inside their own homes without court oversight, a right that not even the U.S. government claims for itself. EFF Staff Attorney Nate Cardozo will argue Tuesday that Ethiopia must answer in court for the illegal spying on Mr. Kidane. The case is also supported by the law firm of Robins, Kaplan, Miller and Ciresi, LLP.

The spyware that EFF’s experts found on Mr. Kidane’s computer appears to be part of a systemic campaign by the Ethiopian government to spy on perceived political opponents. The malware in this case was a program called FinSpy, surveillance software marketed exclusively to governments by the Gamma Group of Companies. Just recently, leaked documents have shown that a competing spyware company called Hacking Team has also provided covert surveillance software to Ethiopia, which was used to spy on journalists critical to the current government.

WHAT:
Kidane v. Ethiopia

WHEN:
Tuesday, July 14
2 pm

WHERE:
United States District Court for the District of Columbia
Courtroom 21
333 Constitution Ave NW
Washington, DC 20001

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Federal and State Authorities Withhold Documents About Access to AT&T Phone Data

San Francisco ­– The Electronic Frontier Foundation (EFF) today filed lawsuits against the U.S. Department of Justice and the California Attorney General’s office demanding records that shed light on a secret drug enforcement program that allows federal and local law enforcement agents to obtain citizens’ phone call records from AT&T.

The ''Hemisphere'' program, which is funded by the Drug Enforcement Administration (DEA) and the White House’s Office of National Drug Control Policy (ONDCP), places AT&T employees within law enforcement agencies to help investigators get quick access to call records stored with the company, according to a New York Times report from 2013. Hemisphere covers all calls passing through an AT&T switch—not just those made by AT&T customers—and includes calls going back to 1987, the Times revealed. Investigators using the program were urged to ''keep the program under the radar'' and use the call records in such a way as to keep Hemisphere’s information ''walled off'' from public scrutiny, according to government documents disclosed by the Times.

EFF filed Freedom of Information Act and Public Records Act requests last year, looking for answers about Hemisphere. But the Justice Department and the California Attorney General released only heavily and improperly redacted records, withholding important information about the program and how it is used by law enforcement. In lawsuits filed in both state and federal court in San Francisco today, EFF asked judges to order the Justice Department and California to turn over the requested records.

''The federal government, specifically the Drug Enforcement Administration, has taken pains to hide its use of Hemisphere, telling police agencies to 'never refer to Hemisphere in any official document,''' said Hanni Fakhoury, EFF senior staff attorney. ''The public has a right to know about this vast phone call records program.''

White House records disclosed by the New York Times revealed that Hemisphere is coordinated in part through the California Attorney General’s Los Angeles Regional Criminal Information Clearing House (LACLEAR), an intelligence support center for Los Angeles drug enforcement activities.

EFF’s request under the California Public Records Act asked LACLEAR for documents about its involvement in Hemisphere, including training materials, contracts between it and federal agencies, and communications about the use of program between LACLEAR and federal and state agencies. However, after a lengthy delay, LACLEAR produced only 99 pages of PowerPoint presentations about training—many of which were redacted in full to hide the names of police squads that used Hemisphere and the law enforcement agencies involved in the Hemisphere request process.

The Justice Department similarly withheld documents, providing only heavily redacted, and essentially worthless, records after EFF filed its FOIA request in February 2014.

''These lawsuits seek transparency over a program that allows law enforcement agencies to tap into a vast phone record database without court oversight,'' said Jennifer Lynch, EFF senior staff attorney. ''The agencies are misusing public records laws to hide information that is crucial to understanding how the Hemisphere program is being used.''

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‘Dancing Baby’ Case Fights DMCA Takedown Abuse

San Francisco - On Tuesday, July 7, at 9 am, the Electronic Frontier Foundation (EFF) will urge an appeals court in San Francisco to confirm that Internet users—from Ms. Lenz to remix artists to scholars to documentary filmmakers—have real protection against baseless content takedowns.

Lenz v. Universal is often called the “dancing baby” case. It started in 2007, when Stephanie Lenz posted a 29-second video to YouTube of her children dancing in her kitchen, with the Prince song “Let’s Go Crazy” playing on a stereo in the background. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince’s song. EFF sued Universal on Lenz’s behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use. In the hearing at the United States Court of Appeals for the Ninth Circuit in San Francisco on Tuesday, EFF Legal Director Corynne McSherry will tell the court that copyright owners must consider fair use before sending a takedown notice, or face legal liability.

Lenz’s video is back on YouTube as this long-running court battle continues, but the issues at stake are very timely. Earlier this month, a British newspaper tried to use a DMCA notice to take down criticism of a story it had published. Additionally, heated political campaigns—like the upcoming presidential primaries—have historically led to a rash of DMCA takedown abuse, as criticism of politicians often include short clips of campaign appearances in order to make their argument to viewers.

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U.S. Battle Over Leaked Emails Leads to Threats to ‘Respublika’ Site

San Francisco - Online news publisher Respublika has asked a federal judge in New York to clarify that officials in Kazakhstan can’t use a U.S. court order in a battle over leaked emails to censor news stories that are critical of the Kazakhstan government. The Electronic Frontier Foundation (EFF) is representing Respublika, a longtime target of Kazakhstan intimidation and persecution because of its investigative reporting on President Nursultan Nazarbayev’s regime.

“An American court order is being misused to silence worldwide discussion and debate over a foreign government’s actions,” said EFF Civil Liberties Director David Greene. “For years, Kazakhstan has tried to shut down Respublika and harassed its founders, and we’re asking the judge to put a stop to Kazakhstan’s use of the court’s ruling as another tool in this censorship campaign.”

The case began in March, when Kazakhstan sued dozens of unnamed individuals in a New York district court for allegedly breaking into government computers and stealing thousands of messages sent from Gmail accounts. The judge in the case issued a preliminary injunction, forbidding these unnamed individuals from disseminating, using, or viewing the material.

Respublika, like many news outlets around the world, reported on the emails after others had posted them publicly. But Kazakhstan government attorneys have since sent multiple letters to the newspaper’s web host, demanding the removal of dozens of articles. Earlier this month, Kazakhstan went further, claiming that the court order required that Respublika’s entire site be disabled. The government also subpoenaed Facebook as well as the newspaper’s web host and domain registrar to obtain personal identifying information about the authors and readers of Respublika’s articles. To date, 47 articles have been removed and are no longer available to readers in the United States, Kazakhstan, and around the world.

This abuse and misuse of the court’s order is just the latest in Kazakhstan’s decade-long persecution of Respublika and those associated with it. Respublika has been driven out of Kazakhstan and subjected to an almost constant stream of coordinated DDoS attacks, and its founders have been subject to extreme harassment and intimidation.

Kazakstan is one of two countries still in the running to host the 2022 Winter Olympics. Earlier this week, the New York Times reported on how concerns about free expression and human rights might affect the country’s bid.

“Kazakhstan came to a U.S. court—where the First Amendment protects the publication of material even if a source obtained that material illegally—but it’s flouting our law. Kazakhstan officials are unilaterally deciding to whom the order applies and what the consequences are,” said Jamie Lee Williams, EFF Frank Stanton Legal Fellow. “The Respublika journalists simply did what they are supposed to do: report on information and events that affect people’s lives. Kazakhstan must not be allowed to censor their speech in this way.”

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Annual Survey Delves Deeper into Practices of Apple, Google, Twitter, and More

San Francisco - Our digital lives are leaving data trails through social networking sites, email providers, Internet service providers, and mobile apps. But which companies fight the hardest to protect their customers from government data grabs of this sensitive information? Today, the Electronic Frontier Foundation (EFF) released its fifth annual “Who Has Your Back” report, charting tech companies’ commitment to the next frontier of user privacy.

“Who Has Your Back” evaluates 24 companies, awarding up to five stars in categories like “tell users about government data requests” and “publicly disclose the company’s data retention policies.” Nine companies earned stars in every category available to them: Adobe, Apple, CREDO, Dropbox, Sonic, Wickr, Wikimedia, Wordpress.com, and Yahoo.

“We entrust countless intimate details about our personal life to digital service providers. Often it’s corporate policies, not legal safeguards, that are our best defense against government intrusion,” said EFF Activism Director Rainey Reitman. “Technology companies must have the strongest possible policies to protect privacy, and we’re impressed that this group of nine has stepped up and met our ambitious new standards.”

This year’s “Who Has Your Back” marks a new era in EFF’s annual report. The best practices that we outlined in earlier years have become tech industry standards. So this year, the first star includes the all the main principles from prior reports rolled into a single category called “Industry-accepted best practices.” Four new categories hold companies to an even higher standard of supporting their users’ privacy.

In the months that EFF has been talking to companies to develop “Who Has Your Back,” there has already been significant improvement in privacy practices. For example, just days ago Amazon released its first-ever transparency report.

But it’s not all good news. For more than a year, EFF has urged Google and Twitter to commit to telling users about government data requests, even when that notice must be delayed due to an ongoing emergency or a gag order, but both companies have yet to improve their policies and earn a star. WhatsApp received only one star despite notice last year from EFF that it was going to be included in “Who Has Your Back” and an acquisition by Facebook that gave it plenty of resources to protect its customers.

“Every day, our digital lives require us to trust the digital services we use more and more, and consumers deserve clear and reliable information about policies and procedures that protect them,” said EFF Staff Attorney Nate Cardozo. “It’s time for all companies to take their users’ privacy seriously and reach the new standards we’ve laid out in ‘Who Has Your Back.’”

Fight Over Music Streaming Site Shows Music Labels’ Overreach

New York – The Electronic Frontier Foundation (EFF) urged a federal court in an emergency hearing and a written filing this week to block the recording industry’s move to force Internet infrastructure companies into becoming copyright police with far-reaching restraining orders.

EFF represents CloudFlare, a service that speeds up websites and protects them from malicious attacks. One of its clients runs a website calling itself Grooveshark, which sprung up after a court shut down the more well known music sharing site Grooveshark. Citing trademark and copyright infringement, a group of record companies including Atlantic, Sony, Universal, and Warner Bros. convinced a New York judge to issue a sealed temporary restraining order. According to the record companies, the order requires service providers of every kind to help take down the new Grooveshark site—even companies like CloudFlare who cannot control their users’ web content or domain names. CloudFlare called EFF to bring the court process into the open and force the recording industry into a fair fight.

“Just because you are providing a service to a website doesn’t mean you should be roped into policing it,” said EFF Staff Attorney Mitch Stoltz. “Copyright holders should not be allowed to blanket infrastructure companies with blocking requests, co-opting them into becoming private trademark and copyright police.”

In the emergency hearing Tuesday, EFF and co-counsel from the firm of Goodwin Procter argued that blocking orders must follow a clear and open legal process, and can’t be directed to companies like CloudFlare. U.S. District Court Judge Alison Nathan ruled at that hearing that the proceedings must continue unsealed. In further briefing yesterday, EFF and Goodwin Procter opposed the restraining order. Judge Nathan is likely to make a decision about whether to target an order at CloudFlare within the next week.

“The record labels may want to stamp out every incarnation of Grooveshark, but a single court order that puts legal responsibilities on the entire Internet is not the way to do it,” said Stoltz.

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Camden, New Jersey – Patent bully Garfum has abandoned its lawsuit against an online photo hobbyist, just one day after a federal judge set the date for a face-off in court against lawyers for the Electronic Frontier Foundation (EFF).

EFF together with Durie Tangri LLP represent Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks, and Garfum claims that it covers the rights to online competitions on social networks where users vote for the winner—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.

Garfum used this patent to accuse EFF’s client of infringement, filing a federal lawsuit without warning. EFF moved to dismiss the complaint earlier this year, arguing that the junk patent should be declared invalid. But after all the briefing had been completed and just one day after the court scheduled a hearing on the motion to dismiss, Garfum capitulated: it dropped its case with a promise not to sue Bytephoto.com again rather than defend its patent before a judge.

“We’re pleased that Garfum has abandoned its claims against our client. But it’s a travesty that this case was ever filed in the first place,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client began running online ‘favorite photo’ competitions years before this patent was filed. The idea that you could patent this abstract idea, find innocent enthusiasts online and demand settlement money—and then slink away once challenged and before the court issues a ruling—goes against any sense of fair play.”

“Patent bullies count on not having to defend their weak patents in a court of law. They drive up costs with baseless lawsuits and then bow out before getting a decision they don’t like,” said EFF Staff Attorney Vera Ranieri. “So while we are glad our client doesn’t have to worry about Garfum anymore, there’s still a lot of work to do the fight against bad patents.”

Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.

Copyright Office to Hear Public Testimony in Los Angeles and Washington, D.C.

Los Angeles and Washington, D.C. - Experts from the Electronic Frontier Foundation (EFF) will testify at public hearings held by the U.S. Copyright Office this week and next, urging officials to grant and expand critical exemptions to the Digital Millennium Copyright Act (DMCA). The exemptions will secure the right to access and tinker with devices in a variety of ways, from jailbreaking their tablets, to repairing their cars, to playing old video games and making remix videos.

EFF Staff Attorney Kit Walsh will testify Tuesday that legal restrictions on tinkering with the software in your car are preventing people and businesses from repairing and customizing vehicles as well as conducting needed security and safety research. Walsh will tell a Copyright Office panel that restricting access to onboard computers in cars, trucks, and tractors drives up costs for vehicle owners and stifles innovation. On Wednesday, May 20, EFF Staff Attorney Mitch Stoltz will urge the panel to grant DMCA exemptions to allow modification of older video games abandoned by manufacturers. On Thursday, May 21, Stoltz will ask the panel to renew exemptions for jailbreaking phones and tablets to run operating systems and applications of their choosing, even if those are not specifically authorized by device manufacturers.

The DMCA hearings continue next week at the Library of Congress in Washington, D.C. On May 28, EFF Legal Director Corynne McSherry will testify in support of creating fair use remixes of videos from locked sources, including DVDs and Blu-ray discs, as well as from online streaming sites.

EFF's testimony is part of the Copyright Office's rulemaking process, convened every three years to consider exemptions to the DMCA's prohibitions on "circumventing" digital rights management (DRM) and other “technical protection measures" used to restrict access to copyrighted works. While the DMCA’s circumvention ban was meant to deter copyright infringement, many have misused the law to chill competition, free speech, and fair use. EFF has filed petitions with the Copyright Office showing how these restrictions interfere with consumers’ rights to tinker with goods they own, from autos to smartphones. In past years, EFF successfully petitioned for the right to jailbreak your phone and use DVD video for fair use remixes.

San Francisco - A federal appeals court today ruled that the NSA's bulk collection of phone records is illegal, saying Congress didn't authorize collection of a ''staggering'' amount of information on Americans. The decision by a three-judge panel of the U.S.Court of Appeals for the 2nd Circuit overturns a judge's ruling dismissing ACLU's challenge to Section 215 of the Patriot Act, ACLU v. Clapper.

''This is a great and welcome decision and ought to make Congress pause to consider whether the small changes contained in the USA Freedom Act are enough,'' said Cindy Cohn, executive director of Electronic Frontier Foundation (EFF). ''The 2nd Circuit rejected on multiple grounds the government's radical reinterpretation of Section 215 that underpinned its secret shift to mass seizure and search of Americans' telephone records. While the court did not reach the constitutional issues, it certainly noted the serious problems with blindly embracing the third-party doctrine—the claim that you lose all constitutional privacy protections whenever a third-party, like your phone company, has sensitive information about your actions."

"Now that a court of appeal has rejected the government's arguments supporting its secret shift to mass surveillance, we look forward to other courts—including the Ninth Circuit in EFF's Smith v. Obama case—rejecting mass surveillance as well," said EFF Legislative Analyst Mark Jaycox. "With the deadline to reauthorize section 215 looming, we also call on Congress to both expressly adopt the interpretation of the law given by the court and to take further steps to rein in the NSA and reform the Foreign Intelligence Surveillance Court."

U.S. Trade Regulators’ Criticism of Other Nations’ IP Practices is Flawed, Biased

San Francisco – Overly broad intellectual property (IP) laws in Russia, Colombia, and Pakistan—which U.S. trade regulators say aren’t tough enough—stifle access to innovation and threaten artists, students, and creators around the globe with prison, censorship, and state prosecution, the Electronic Frontier Foundation (EFF) said in a new report released today.

EFF’s “Special 404 Report” is a response to the “Special 301 Report”—a deeply flawed annual assessment of international intellectual property rights policies released by the Office of the U.S. Trade Representative (USTR) today. The Special 301 Report is used to pressure countries to adopt IP laws supported by some powerful business interests.

In a first-of-its-kind analysis countering the USTR’s “name and shame” tactics, EFF demonstrates how the Special 301 Report paints a one-sided picture of IP rights and fails to disclose the damaging results of draconian IP policies. Examples include a human rights activist in Russia who was targeted by prosecutors using criminal copyright law, a biologist in Colombia who faces prison for sharing research, and students in Pakistan who struggle to exercise their rights under local law to study academic papers.

“The Special 301 Report is built on an opaque process that echoes the desires of certain members of private industry, like Hollywood rights holders,” said Jeremy Malcolm, EFF senior global policy analyst. “It’s meant to push countries to adopt stiffer IP laws, even if such laws aren’t in the best interests of the citizens of that country. Our report shows how, in countries targeted by the USTR report, stringent intellectual property laws have had shameful and frightening consequences.’’

EFF’s 404 report—named after the error code that appears on the web to show browsers that something is missing—features case studies from Canada, Chile, Pakistan, Romania, Colombia, and Russia. In addition to showing the chilling effects of copyright policies that the Special 301 Report condemns as not tough enough, the 404 report also highlights how flexible fair use interpretations can benefit communities, culture, and the economy. Additionally, EFF covers flaws in the USTR report, including lack of balance, questionable legal basis, lack of set criteria for analyzing copyright policies, and exclusion of a means by which countries can challenge findings.

“Our report puts a human face on the victims of defective IP policy, and tells the story of Diego Gomez, a masters student in Colombia who could be jailed and face huge fines after the government criminally prosecuted him for sharing an academic paper on Scribd,’’ said Maira Sutton, EFF global policy analyst. “Countries around the globe should be skeptical when considering the recommendations of the USTR Special 301 Report and push for fair use and open access when adopting and enforcing IP laws.”

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Ruling from USPTO Invalidates All Claims Used to Threaten Podcasters

San Francisco - The U.S. Patent and Trademark Office (USPTO) invalidated key claims in the so-called “podcasting patent” today after a petition for review from the Electronic Frontier Foundation (EFF)—a decision that significantly curtails the ability of a patent troll to threaten podcasters big and small.

“We’re grateful for all the support of our challenge to this patent. Today is a big victory for the podcasting community” said EFF Staff Attorney Daniel Nazer, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. “We’re glad the Patent Office recognized what we all knew: ‘podcasting’ had been around for many years and this company does not own it.”

The “podcasting patent” became big news in 2013, when a company called Personal Audio, LLC, began demanding licensing fees from podcasters including comedian Adam Carolla and three major television networks. Personal Audio doesn’t do podcasting itself, but instead used its patent to claim infringement and collect payouts from actual creators.

In petitions filed with Patent Office, EFF showed that Personal Audio did not invent anything new before it filed its patent application, and, in fact, other people were podcasting for years previously. Earlier examples of podcasting include Internet pioneer Carl Malamud's "Geek of the Week" online radio show and online broadcasts by CNN and the Canadian Broadcasting Corporation (CBC).

“We have a lot to celebrate here,” said EFF Staff Attorney Vera Ranieri. “But unfortunately, our work to protect podcasting is not done. Personal Audio continues to seek patents related to podcasting. We will continue to fight for podcasters, and we hope the Patent Office does not give them any more weapons to shake down small podcasters.”

EFF partnered with attorneys working pro bono and the Cyberlaw Clinic at Harvard's Berkman Center for Internet and Society to craft the petition for review with the USPTO.

Los Angeles — Human Rights Watch, a nonpartisan organization that fights human rights abuses across the globe, filed suit against the U.S. Drug Enforcement Administration late Tuesday for illegally collecting records of its telephone calls to certain foreign countries as part of yet another government bulk surveillance program. The group is represented by the Electronic Frontier Foundation (EFF), which has launched a series of legal challenges against unconstitutional government surveillance.

“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”

The DEA disclosed the existence of its surveillance for the first time in January, after a federal judge ordered the government to reveal more information about the program. The agency made the disclosure in a criminal case against a man accused of violating export restrictions on goods to Iran. In a declaration filed in the case, a DEA agent described the then-secret program of collecting telephone records of calls made from the U.S. to “designated foreign countries’’ that are connected with international drug trafficking. The declaration revealed that DEA relied on administrative subpoenas to amass the database of Americans’ call records. The DEA obtained the records without judicial oversight or approval.

News reports say the program, run by the DEA’s special operations division, began its bulk collection in the 1990s, using the collected records to create a database for domestic criminal probes. The information was shared with other law enforcement agencies, including the FBI and the Department of Homeland Security for reasons unrelated to drug trafficking, media reports said. Although the DEA has indicated the program was “suspended” in 2013, this suit seeks to ensure the program is permanently terminated, that it cannot restart, and that all of HRW’s illegally collected records have been purged from all government systems.

Human Rights Watch and its staff work regularly on issues in countries linked to drug trafficking, communicating with victims or witnesses to human rights abuses.

“Human Rights Watch often works with people in dire circumstances around the world. Our sources are sometimes in life or death situations, and speaking out can make them a target,” said Dinah PoKempner, general counsel of Human Rights Watch. “Who we communicate with and when we communicate with them is often extraordinarily sensitive—and it’s information that we would never turn over to the government lightly.”

“The NSA isn’t the only federal agency collecting Americans’ call records in bulk,” said EFF staff attorney Mark Rumold. “The DEA’s program is yet another example of federal agencies overreaching their surveillance authority in secret. We are asking the court to require the government to destroy the records it illegally collected no matter where they are held, and to declare—once and for all—that bulk collection of Americans’ records is unconstitutional.’’

EFF also represents plaintiffs in First Unitarian v. NSA, a case filed in 2013; Jewel v. NSA, a class action case filed in 2008; and Smith v. Obama, a lawsuit from an Idaho emergency neonatal nurse. Those lawsuits challenge NSA programs of dragnet surveillance of millions of ordinary Americans.

New 'Best Practice' Roadmap to Protect Rights and Promote Innovation

Manila - An international coalition launched the “Manila Principles for Intermediary Liability” today—a roadmap for the global community to protect online freedom of expression and innovation around the world.

“All communication across the Internet is facilitated by intermediaries: service providers, social networks, search engines, and more. These services are all routinely asked to take down content, and their policies for responding are often muddled, heavy-handed, or inconsistent. That results in censorship and the limiting of people’s rights,” said Electronic Frontier Foundation (EFF) Senior Global Policy Analyst Jeremy Malcolm, who helped spearhead the principles. “Our goal is to protect everyone’s freedom of expression with a framework of safeguards and best practices for responding to requests for content removal.”

EFF, Centre for Internet Society India, Article 19, and other global partners unveiled the principles today at RightsCon, a major international conference on the Internet and human rights held this week in Manila. The framework outlines clear, fair requirements for content removal requests and details how to minimize the damage a takedown can do. For example, if content is restricted because it’s unlawful in one country or region, then the scope of the restriction should be geographically limited as well. The principles also urge adoption of laws shielding intermediaries from liability for third-party content, which encourages the creation of platforms that allow for online discussion and debate about controversial issues.

“People ask for expression to be removed from the Internet for various reasons, good and bad, claiming the authority of myriad local and national laws. It’s easy for important, lawful content to get caught in the crossfire,” said Jyoti Panday from the Centre for Internet and Society India. “We hope these principles empower everyone—from governments, to intermediaries, to the public—to fight back when online expression is censored.”

The principles and supporting documents can be found online at https://www.manilaprinciples.org, where other organizations and members of the public can also express their own endorsement of the principles.

California Court of Appeal to Hear Oral Arguments in Public Records Lawsuit

Los Angeles - Electronic Frontier Foundation (EFF) Senior Staff Attorney Jennifer Lynch will argue the public has a right to know how Los Angeles police are tracking their locations with automatic license plate readers (ALPRs) at a hearing before the California Court of Appeal in Los Angeles on Wednesday.

Automatic license plate readers include cameras mounted on patrol cars and at fixed locations, such as street lights, that collect the license plate numbers of every car that comes into view, along with the time, date, and location of the plate scan. In the aggregate, these data points have the potential to reveal personal information about drivers, such as where they live, where they work, what doctors they visit, and where they worship.

Since May 2013, EFF and the ACLU Foundation of Southern California have been fighting in court to obtain one week's worth of raw data collected by ALPR systems operated by the Los Angeles Police Department and Los Angeles County Sheriff's Department in an effort to shine light on this privacy-invasive technology. In October 2014, EFF appealed a lower court ruling that found the police agencies did not have to release the data under the California Public Records Act.

EFF and ACLU were supported by amicusbriefs filed by media organizations and transparency groups, including the Northern California Chapter of the Society of Professional Journalists, Reporters Committee for Freedom of the Press, Californians Aware, California Newspaper Publishers Association, Los Angeles Times, and the McClatchy Company.

Lawmakers Must Reform Flawed System that Enables Demand Letter Abuse

Washington, D.C. - Electronic Frontier Foundation (EFF) Staff Attorney Vera Ranieri will testify Thursday at a congressional hearing on patent demand letters. Lawmakers will consider what they should do to reform the flawed patent system, which currently allows unscrupulous patent assertion entities, or trolls, to use unfair and deceptive demand letters to extort undeserved settlements from legitimate businesses.

Armed with vague and overbroad patents that never should have issued, patent trolls pressure small businesses to pay unjustifiable licensing fees. Businesses receiving these demand letters often lack the resources to fight back or to coordinate with others faced with similar demands. In her testimony Thursday, Ranieri will urge Congress to enact measures to protect small businesses from abusive and deceptive demand letters, including enacting disclosure requirements that would help both lawmakers and the public to understand the damage patent trolls do to America's economy.

Thursday's testimony is part of EFF's long-running activism against bad patents and abuse of the patent system. Earlier this week, EFF released its “Defend Innovation” whitepaper, explaining two-and-a-half years' worth of research on the challenges facing innovators under the current patent regime, along with concrete suggestions of measures policymakers should take in the coming year.

San Francisco - The U.S. patent system is in crisis, but there are clear steps Congress and the White House can take to mitigate the impact of vague patents, patent trolls, and a weak legal process to protect competition and creativity, the Electronic Frontier Foundation (EFF) explains in a new report released today.

The "Defend Innovation" whitepaper is the culmination of two-and-a-half years worth of research, drawing from the stories, expertise, and ideas of more than 16,500 people who agree that the current patent system is broken. Split into two parts, the report covers both the challenges facing innovators under the current patent regime, as well as concrete measures that policymakers must take in the coming year.

"Fixing the current patent mess will require concerted action, but it can be done," EFF Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents Daniel Nazer said. "Now more than ever, there is both the need and the will for real and lasting reform."

In the first part of the report, EFF provides in-depth analysis of how overbroad and vague software patents, combined with an insufficient review process by the U.S. Patent and Trademark Office, have hindered rather than supported innovation. This broken regime has created an environment ripe for abuse by patent trolls, also known as "patent assertion entities," that sue or threaten to sue businesses for patent infringement, even though these entities don't make or sell a product themselves. The explosion in software patents has also led to a patent arms race, in which companies acquire broad patents for defensive purposes.

"The U.S. Patent and Trademark Office is issuing far too many weak and overbroad patents, particularly on software," EFF Staff Attorney Vera Ranieri said. "Instead of promoting innovation, these patents become hidden landmines for companies that bring new products to market."

In the second part of the report, EFF prescribes six legislative reforms that would begin to fix the patent system. These include:

Ensuring there are inexpensive and efficient tools for challenging the validity of issued patents

Passing a comprehensive patent reform bill, such as the Innovation Act

In addition, EFF is calling on private companies to adopt alternative patent licensing schemes that can help prevent patent abuse.

"All three branches of government, as well as individuals and companies, have a part to play when it comes to patent reform," EFF Activist Adi Kamdar said. "Right now, we need legislation that clamps down on litigation abuse by patent trolls and bad actors, and empowers those on the defensive end of frivolous lawsuits to fight back swiftly and cheaply."

The "Defend Innovation" report is one part in EFF's multifaceted campaign to reform the patent system, which also includes the website TrollingEffects.org, the "Stupid Patent of the Month" blog series, and legal effort to invalidate the so-called "podcasting patent."

New Brief Urges Justices to Protect Citizens from Warrantless Analysis of Genetic Material

San Francisco - People have a Fourth Amendment right to privacy when it comes to their genetic material, the Electronic Frontier Foundation (EFF) argues in an amicus brief filed this week with the Supreme Court of the United States.

EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze "inadvertently shed" DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.

"As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be," EFF Senior Staff Attorney Jennifer Lynch said. "The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance."

Glenn Raynor's genetic material was collected and tested without his knowledge or consent after he agreed to an interview at a police station as part of a criminal investigation. The police didn't have probable cause to arrest Raynor, and he refused to provide a DNA sample. After he left the station, police swabbed the armrest of the chair where he had been sitting to collect his skin cells without his knowledge. The police then extracted a DNA profile from the cells and used it to connect him to the crime. The Maryland Court of Appeals ruled that this collection was lawful, and Raynor petitioned the Supreme Court for review. EFF's brief supports Raynor's petition.

The sophistication and speed of DNA analysis technology is advancing exponentially as the costs of the technology drop. These advances, EFF argues, raise significant questions for privacy and civil liberties. DNA can reveal sensitive personal health information and can allow police to identify a person's relatives, turning family members into inadvertent "genetic informants" on each other. Some researchers have also postulated that DNA can determine race, sexual orientation, intelligence, and even political predispositions.

"Law enforcement should not be able to amass giant databases of genetic material they find lying around," EFF Senior Staff Attorney Hanni Fakhoury said. "The Supreme Court should review this case and consider it within the context of emerging technologies that could significantly affect the privacy rights of every American."

San Francisco - The Electronic Frontier Foundation (EFF), together with Durie Tangri LLP, is defending a photo hobbyist against an outrageous patent suit from a company that claims to hold the rights to online competitions on social networks where users vote for the winner.

“It’s part of our job to identify stupid patents and to try to get rid of them, and this is one of the silliest I have ever seen,” said EFF Staff Attorney Daniel Nazer, who is also the Mark Cuban Chair to Eliminate Stupid Patents. “Our client has been running ‘vote-for-your-favorite-photo’ polls for years, just for fun and the love of photography. The idea that you could patent this abstract idea—and then demand a settlement to go away—goes against both patent law and common sense.”

EFF’s client runs Bytephoto.com, which has hosted user-submitted photos and run competitions for the best since 2003. In 2007, a company called Garfum.com applied for a patent on the “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent, U.S. Pat. No. 8,209,618, takes the well-known concept of a competition by popular vote and applies it to the modern context of generic computer networks—despite the fact that courts have ruled that this kind of abstract idea using generic computer technology cannot be patented.

In September of last year, Garfum used this patent to accuse EFF’s client of infringement, and filed suit. In the motion to dismiss the complaint, EFF argues that the patent should be declared invalid.

“Patents like this improperly interfere with the ability of people to use the Internet to do things they’ve been doing in the analog world for generations. Here, this patent is interfering with the age-old tradition of like-minded enthusiasts getting together to celebrate their hobbies,” said EFF Staff Attorney Vera Ranieri. “Demanding a payout for infringement on an obviously bad patent like this one isn’t just unfair. It acts as a chilling effect against those who would want to use the Internet to expand their community.”

“Patent bullies sue with weak patents and pick on defendants that can’t afford to prove their innocence,” said Nazer. “We’re glad we can help our client fight back against Garfum’s abuse.”

Joe Gratz of the law firm Durie Tangri LLP and Frank Corrado of Barry, Corrado & Grassi, PC are co-counsel with EFF.

EFF’s Clients’ Identities Must Remain Secret, But Still Speak Out About Unconstitutional Gag Orders

San Francisco - Two companies who must remain anonymous about their fight against secret government demands for information known as national security letters (NSLs) are backing Twitter's lawsuit over its rights to publish information about NSLs it may have received. The companies—a telecom and an Internet company—are represented by the Electronic Frontier Foundation (EFF).

Twitter filed its suit in October, saying users deserved to know certain basic facts about NSLs that the government did or did not serve on the social media company. NSLs—issued by the federal government but not approved by a judge—almost always contain a gag order barring the companies from notifying their customers or the public that any demands have been made.

The companies represented by EFF also want to go public with some details of their fights against NSLs, including their corporate identities and what they have done to protect their customers from unreasonable collection of information. In an amicus brief filed today, they argue that the gag orders are an unconstitutional prior restraint on free speech and a serious infringement of their First Amendment rights. However, the government continues to maintain that even identifying EFF's clients as having received an NSL might endanger national security.

"The Supreme Court as well as courts across the land have recognized that a prior restraint—preventing speech in the first instance instead of imposing a penalty after the speech—is a serious and dangerous step," said EFF Legal Fellow Andrew Crocker. "Yet with NSLs, we have prior restraints imposed at the government's whim, without any judicial oversight or review. Our clients want to talk about their experience with these NSLs, but the government is unconstitutionally shielding itself from any criticism or critique of their procedures."

In 2013, a federal district court judge in San Francisco agreed with EFF and its clients that the NSL provisions were unconstitutional, and barred any future NSLs and accompanying gag orders. That ruling was stayed pending appeal, however, and the district court has subsequently enforced additional NSLs while EFF is arguing the case in the United States Court of Appeals for the Ninth Circuit.

"The district court in our case against national security letters was right—the First Amendment forbids the FBI from gagging service providers from openly discussing such invasive, secretive, and unaccountable activities," said EFF Deputy General Counsel Kurt Opsahl. "On behalf of our clients, we are asking this court to reach the same conclusion, and allow the public to get information they need about law enforcement activities."

San Francisco - The Electronic Frontier Foundation (EFF) today filed a Freedom of Information Act (FOIA) lawsuit to shine light on the U.S. Marshals Service's (USMS) use of small aircraft mounted with controversial cell-phone tracking systems.

The Wall Street Journal revealed last year that the Marshals have been flying small, fixed-wing Cessna planes mounted with IMSI catchers—devices that emulate cell phone towers and are able to capture the locational data of tens of thousands of cell phones during a single flight. The planes—in the air since 2007—reportedly were based out of five metropolitan airports and shared by multiple agencies within the U.S. Department of Justice, even as sources within the agency questioned the legality of the program.

In the press, IMSI catchers are also known as "stingrays," a name taken from the "Stingray II" device manufactured by Harris Corporation, or "dirtboxes," a nickname for Boeing subsidiary Digital Receiver Technology's "DRT" devices. Across the country, the Justice Department has intervened in local public records battles to prevent the release of information about these technologies, employing tactics such as signing nondisclosure agreements with state and local law enforcement agencies, seizing records held by those agencies, and withholding key pieces of information about the technology from judges and criminal defendants.

A week after the Wall Street Journal story kicked off a media firestorm, EFF filed a comprehensive FOIA request with Justice Department and FBI over the USMS program, seeking a wide variety of records, including policies, procedures, training materials, communications about the legality of the program, and documentation of each use of the spy planes. As of this filing, the Justice Department has produced no records in response to the request or offered a timeline for release of the documents.

"These devices pose obvious privacy concerns, but the government has been opaque about its use of stingrays,” EFF Legal Fellow Andrew Crocker said. “It's time to do away with the secrecy."

San Francisco - The Electronic Frontier Foundation (EFF) filed petitions with the U.S. Copyright Office seeking to keep users who remix DVD content or jailbreak their devices from losing their legal safe harbors and to establish new rights for those who need to circumvent "access control" or "digital rights management" (DRM) technologies for activities such as conducting security research, repairing cars, and resuscitating old video games. The petitions were submitted as part of the complex, triennial rulemaking process that determines exemptions from Section 1201 of the Digital Millennium Copyright Act (DMCA).

With the passage of the DMCA in 1998, Congress created "anti-circumvention" measures, ostensibly designed to prevent people from undermining DRM for purposes of copyright infringement. Recognizing that the law could impede lawful and important uses of copyrighted works, Congress included a provision in which the Copyright Office and Librarian of Congress are tasked with deciding which activities should and should not be exempted every three years through a complicated legal process.

The rulemaking process allows organizations like EFF to fight for the rights that digital businesses and consumers should already have. Even when petitions are successful, groups such as EFF still need to fight for each exemption to be reinstated each cycle.

- Modifying older video games that require a centralized authentication server, after that server has been taken offline (https://eff.org/r.7vmq)

"The DMCA shouldn't keep vehicle owners from looking under the hood," said Staff Attorney Kit Walsh, lead drafter of the petitions relating to vehicles. "We all benefit when independent repair shops have the knowledge they need to compete, when experts are able to check for safety issues, and when enthusiasts can come up with car mods and share their knowledge with the world."

This rulemaking is the fifth held by the Copyright Office, and the fourth time EFF has fought for exemptions. In 2006, EFF did not participate and instead focused on revealing how ineffective and burdensome the process is for consumers, innovators, repairers, and creators.

"Section 1201 of the DMCA has essentially given the Librarian of Congress control over what we can and can't do with our own electronic devices," EFF Staff Attorney Mitch Stoltz, lead drafter of the jailbreaking petitions. "The DMCA was supposed to protect against copyright infringement, but the law, including the labyrinthine exemption process, chills all kinds of lawful activities completely unrelated to infringement."

Opponents to the exemptions have 45 days to file responses, after which EFF will have another 30 days to provide counter-replies. After that, the Copyright Office is expected to issue its recommendations in the fall, with the Librarian of Congress making final decisions.

In January, EFF separately launched the Apollo 1201 Project, in which author and digital-rights champion Cory Doctorow will work with EFF to repeal laws protecting DRM, assist EFF with DRM-related litigation, and partner with industry to develop viable, legal alternatives to digital restrictions.

EFF's remix petition was drafted and co-submitted with the Organization for Transformative Works. EFF’s remaining petitions received invaluable assistance from the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.

Federal Law Blocks Extraordinary and Burdensome Subpoena

San Francisco - A high-profile battle over whether Google must respond to an unusual and dangerous subpoena raises fundamental concerns about federal free speech law and the protections it affords hosts of online content, the Electronic Frontier Foundation (EFF) argued in an amicus brief filed today.

Attorney General Jim Hood of Mississippi issued the 79-page subpoena in October, seeking information about Google's policies and practices with respect to content it hosts, Internet searches, and more. The invasive request appeared to be based primarily on allegedly unlawful activities of third parties who use Google's services. Then in December, journalists reported that documents disclosed in the Sony hack outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant. In the face of these developments, and the Attorney General's unwillingness to narrow the request, Google sought protection from a Mississippi federal court.

"Despite the dramatic storyline, this all comes down to well-established law protecting hosts of Internet content from liability for much of what their users say and do on their platforms: Section 230 of the Communications Decency Act," said EFF Intellectual Property Director Corynne McSherry. "If CDA 230 was disregarded, and online service providers were required to respond in full to subpoenas like this one, they would inevitably face extraordinary legal costs. That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation."

In the amicus brief filed today, EFF argues that Congress' express intent was to encourage the development of new communications technologies by holding online speakers responsible for what they say—instead of the soapboxes where they say it. It's a principle that has allowed the Internet and the myriad online communities it contains to thrive.

"CDA 230 is perhaps the most valuable law we have for protecting innovation and online speech," said EFF Frank Stanton Legal Fellow Jamie Williams. "The Mississippi subpoena is an obvious violation of federal statute, and the court should grant Google the protection that Congress intended."

The Center for Democracy and Technology, the Open Technology Institute, Public Knowledge, and R Street Institute joined EFF in the brief.

Citizens Have a Right to Challenge Laws That Violate the Fourth Amendment

San Francisco - The Electronic Frontier Foundation (EFF) today filed an amicus brief with the U.S. Supreme Court in a challenge brought by hotel owners against a Los Angeles city ordinance that allows police to access guest registers without consent, warrant, or other legal process. Supporting the hotel owners, EFF argues that people must have the right to challenge surveillance laws like these on Fourth Amendment grounds, even before police have used the law to conduct a suspicionless search.

"In an era of pervasive surveillance, the ability to challenge overbroad laws that invade privacy is more important than ever," Senior Staff Attorney and Adams Chair for Internet Rights Lee Tien said.

Central to City of Los Angeles v. Patel is a city ordinance requiring hotel operators to retain certain guest registry information, which they must make available to police officers on demand. Hotel operators aren't allowed to challenge requests for guest information in court in advance and can be punished with a jail or fine if they refuse to comply.

The U.S. Court of Appeals for the Ninth Circuit found that the ordinance violates the Fourth Amendment: individuals subject to an "administrative search"—a kind of warrantless, suspicionless search that may be performed for reasons unrelated to criminal investigations—must be allowed to object in court before they can be punished for resisting the requests. However, a dissenting opinion argued that not only does the Los Angeles ordinance satisfy the Fourth Amendment, but the Constitution does not allow the hotel owners to challenge the law until the government actually uses the law to conduct a warrantless search against them.

Department of Justice to Release Analysis of Law Enforcement and Intelligence Agency Access to Census Records

San Francisco - The Electronic Frontier Foundation (EFF) has won its four-year Freedom of Information Act lawsuit over secret legal interpretations of a controversial section of the Patriot Act, including legal analysis of law enforcement and intelligence agency access to census records.

The U.S. Department of Justice today filed a motion to dismiss its appeal of a ruling over legal opinions about Section 215 of the Patriot Act, the controversial provision of law relied on by the NSA to collect the call records of millions of Americans. As a result of the dismissal, the Justice Department will be forced to release a previously undisclosed opinion from the Office of Legal Counsel (OLC) concerning access by law enforcement and intelligence agencies to census data under Section 215.

"The public trusts that information disclosed for the census won't wind up in the hands of law enforcement or intelligence agencies," Staff Attorney Mark Rumold said. "The public has a right to know what the Office of Legal Counsel's conclusions were on this topic, and we're happy to have vindicated that important right."

In October 2011—the 10th anniversary of the signing of USA Patriot Act—EFF sued the Justice Department to gain access to all "secret interpretations" of Section 215. At earlier stages in the litigation, the Justice Department had refused to publicly disclose even the number of documents that were at issue in the case, claiming the information was classified.

In June 2013, the lawsuit took a dramatic turn after The Guardian published an order from the Foreign Intelligence Surveillance Court authorizing the bulk collection of call records data of Verizon customers. That disclosure helped EFF secure the release of hundreds of pages of legal opinions, including multiple opinions of the Foreign Intelligence Surveillance Court excoriating the NSA for disregarding the court's orders.

However, the Justice Department continued to fight for secrecy for the legal opinion over access to census data under Section 215. Last August, a federal district court judge ordered the government to disclose the OLC opinion.

"The Justice Department has made a wise decision in dismissing the appeal," Rumold said. "We filed this suit nearly four years ago to inform the public about the way the government was using Section 215. We're well overdue to have a fully informed, public debate about this provision of law, and hopefully the disclosure of this opinion will help move the public debate forward."

Although the motion for dismissal was filed today, the government has not provided EFF with the opinion. After receiving the document, EFF will also make it available through its website.

Senior Staff Attorney Lee Tien to Be New Adams Chair for Internet Rights

San Francisco - The Electronic Frontier Foundation (EFF) has received a $3 million dollar grant from the Adams Charitable Foundation to fund the new Adams Chair for Internet Rights. The donation is being held in an endowment to permanently fund a position on EFF's legal team.

EFF Senior Staff Attorney Lee Tien has been selected to be the first Adams Chair. Since joining EFF nearly 15 years ago, Tien has fought to preserve our freedom to speak, read, associate, and innovate without fear of surveillance, and for the right to develop and use technology that enhances digital civil liberties. Tien has been a key member of EFF's legal team challenging the NSA's massive expansion into domestic spying, including Hepting v. AT&T—the first major lawsuit about illegal collection of phone records data from millions of ordinary Americans, originally filed in 2006.

"EFF is grateful for the support of the Adams Charitable Foundation," said EFF Executive Director Shari Steele. "The Adams Chair for Internet Rights will provide support for EFF's legal work for years to come."

Doctorow will be a special consultant to the Apollo 1201 Project, a mission to eradicate DRM in our lifetime. Apollo 1201 will challenge the use of DRM as well as the legal structures that support it.

"Apollo was a decade-long plan to do something widely viewed as impossible: go to the moon. Lots of folks think it's impossible to get rid of DRM. But it needs to be done," said Doctorow. "Unless we can be sure that our computers do what we tell them, and don't have sneaky programs designed to take orders from some distant corporation, we can never trust them. It's the difference between 'Yes, master' and 'I CAN'T LET YOU DO THAT DAVE.'"

Working in the United States and across the globe, Doctorow will accelerate the movement to repeal laws protecting DRM, assist EFF with DRM-related litigation, and work with industry to kick-start a vibrant market in viable, legal alternatives to digital locks.

For many years, EFF has fought the use of DRM technologies, explaining that such technologies—as well as the laws that support them—impede innovation, security, and basic user rights and expectations, while failing to inhibit copyright infringement. One example of this lose-lose proposition is Section 1201 of the Digital Millennium Copyright Act (DMCA), which generally prohibits unlocking "access controls" like DRM. That ban was meant to deter illegal copying of software, but many companies have misused the law to chill competition, free speech, and fair use. Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, tinkering, repairing, and re-using those devices can lead to legal risk.

Section 1201 has also put a dangerous chill on security researchers, who face potential legal penalties for finding and disclosing critical flaws in systems—from smartphones to home automation. As a result, the public gets to find out about compromising vulnerabilities too late, or not at all.

"We've seen DRM misused again and again, whether it's to thwart competition in printer-ink cartridges, to prevent videogame fans from modifying their consoles, or to block consumers from reading the parts' specifications on their own cars," said EFF Intellectual Property Director Corynne McSherry. "Cory has an unparalleled ability to show the public how bad copyright policy tramples on everyone's rights."

Doctorow worked for EFF for four years as its European Affairs Coordinator, and in 2007, he won EFF's Pioneer Award for his body of work on digital civil liberties. He's the originator of "Doctorow's Law," which has helped many around the world understand the dangers of DRM: "Anytime someone puts a lock on something you own, against your wishes, and doesn't give you the key, they're not doing it for your benefit."

"No matter how noble your cause, you can't advance it by insisting that computers everywhere be equipped with spyware to stop people from running the 'wrong' code," said Doctorow. "The bad guys will still figure out how to run that code, and everyone else will end up with critical infrastructure that, by design, treats them as untrustable attackers and, by design, lets remote parties covertly seize control of the computers around them. We all deserve a better future—one without DRM."

First Public Court Challenge to “Upstream” Internet Spying

Oakland - The Electronic Frontier Foundation (EFF) will argue on Friday before a federal court that the National Security Agency (NSA) is violating the Fourth Amendment by copying and searching data that it collects by tapping into the Internet backbone. The hearing on a motion for partial summary judgment in Jewel v. NSA will be at 9 am on Dec. 19 before Judge Jeffrey White at the federal courthouse in Oakland.

Jewel was filed in 2008 on behalf of San Francisco Bay Area resident Carolyn Jewel and other AT&T customers. EFF has amassed a mountain of evidence to support the case, including documents provided by former AT&T technician Mark Klein, which show that the company has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Other whistleblowers—including Thomas Drake, Bill Binney and Edward Snowden—have revealed more detail about how this technique feeds data into the NSA's massive databases of communications. Since June 2013, the government has confirmed that it searches much of the content it collects as part of its "upstream" collection without a warrant. The government claims the content searches are justified under Section 702 of the FISA Amendments Act and do not violate the Fourth Amendment.

Under the government's legal theory, it can copy virtually all Internet communications and then search them from top to bottom for specific "identifiers"—all without a warrant or individualized suspicion—as long as it does so quickly using only automated processes.

EFF Special Counsel Richard Wiebe will argue before the court that the Fourth Amendment definitively bars this type of dragnet. As EFF presented in its motion, enough information now exists on the record for the court to rule that the government's technique represents an unconstitutional search and seizure.

What: Motion for Partial Summary Judgment

Who: Richard Wiebe, EFF Special Counsel

Date: Friday, Dec. 19, 2014

Time: 9:00 am

Where: Oakland Federal Courthouse

Courtroom 5, 2nd Floor

1301 Clay St.

Oakland, CA

Wiebe and EFF staff attorneys will be available for comment immediately following the hearing.

Contact:

Battle to Stop Patent Troll Reaches Oral Argument

Alexandria, Va. - The Electronic Frontier Foundation (EFF) will argue at a public hearing Wednesday that the U.S. Patent and Trademark Office (USPTO) should invalidate key claims of a patent used by notorious patent troll Personal Audio to shake down podcasters.

Personal Audio claims it owns a patent that covers podcasting, despite the fact that many examples of what we now call podcasting existed before the patent was issued. In May 2013, EFF launched its "Save Podcasting" campaign in response to Personal Audio's spate of legal threats and lawsuits. Buoyed by support from its members and the podcasting community, EFF filed a petition challenging five claims of U.S. Patent No. 8,112,504 in October 2013.

Personal Audio is known as a "non-practicing entity"—a company that doesn't do podcasting itself but instead bases its business model on demanding license fees from actual creators, from garage podcasters to major broadcasters. At this hearing, EFF's pro bono counsel will argue before the panel of USPTO judges that Personal Audio did not invent anything new or non-obvious that should entitle Personal Audio to a patent.

The hearing is open to the public, although hearing badges will only be issued on a first come, first served basis. The patent office asks that visitors arrive 30 minutes early and bring identification.

EFF Staff Attorney Vera Ranieri will be available for interviews directly following the hearing.

Groups Demand That Negotiators Release Text of Secret Trade Deal

Washington, D.C. - The Electronic Frontier Foundation (EFF) has joined dozens of civil society groups from around the world in calling for the release of the secret text of the Trans-Pacific Partnership (TPP)—a massive proposed trade agreement that could quash digital rights for Internet users everywhere in the name of intellectual property protection.

A representative from OpenMedia International is presenting a letter from the coalition to several TPP delegates on Thursday and Friday at the TPP negotiations in Washington, D.C. The letter demands open debate and oversight of the trade deal, which threatens to extend restrictive intellectual property laws across the globe and rewrite international rules on its enforcement.

"The TPP has been under negotiation for five years, but the only real information we have about it has been through leaks," said EFF Global Policy Analyst Maira Sutton. "Those leaks show extremely troubling provisions, including expanding laws that hurt fair use and free speech along with a number of privacy-threatening enforcement proposals. We've recently seen the European Union take bold new steps to enable real public participation in its trade agreement negotiations with the United States, and it's time for TPP ministers to follow their lead, stop the secrecy, and release official drafts of the TPP text."

The most recent leak of the TPP confirmed that draft provisions on anti-circumvention could restrict tinkerers and makers from modifying legally purchased electronic devices, and that language on service-provider liability could encourage companies to scour all customers' communications just to track down any potential copyright infringement. The leak also revealed new, dangerously vague text on the misuse of trade secrets, which could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a "computer system" that is considered "confidential." This language could have alarming consequences if nations are obligated to enact new laws that could be used to crack down on journalists and whistle blowers.

"Twelve countries are involved in the TPP negotiations, but because of the interconnected nature of global communications, this agreement stands to hurt people around the world," EFF Senior Global Policy Analyst Jeremy Malcolm said. "We need transparency and real public debate now."

Anna Smith, a neonatal nurse from Coeur d'Alene, filed her lawsuit against President Barack Obama and several U.S. intelligence agencies in June 2013, shortly after the government confirmed that the NSA was collecting telephone records on a massive scale under Section 215 of the Patriot Act. Smith, a Verizon customer, argues the program violated her Fourth Amendment rights by amassing a wealth of detail about her familial, political, professional, religious, and intimate associations. Following a district court ruling against Smith, the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU) and the American Civil Liberties Union of Idaho joined the case as co-counsel in July 2014 to assist in crafting the appeal.

Anna Smith's husband, Peter Smith of Lukins & Annis, P.S., who filed the case and argued on Anna's behalf to the trial court, will present oral arguments before a panel of three judges (Hon. Michael Daly Hawkins, Hon. M. Margaret McKeown, and Hon. Richard C. Tallman) at the United States Court of Appeals for the Ninth Circuit.

EFF presented appellate oral arguments in a similar case, Klayman v. Obama, last month. On Dec. 18, EFF will present arguments in San Francisco in Jewel v. NSA, asking the court to find that the NSA's mass copying of Internet communications violates the Fourth Amendment. EFF's other challenge to NSA surveillance, First Unitarian Church of Los Angeles v. NSA, remains pending before a trial judge.

San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of technology and free speech organizations are asking the United States Court of Appeals for the Ninth Circuit to fix a disastrously wrongheaded copyright ruling that required an online service provider to take offline—and keep offline—a controversial video that has been the center of a global debate.

This case, Garcia v. Google, centers on "The Innocence of Muslims," a short video on YouTube that sparked protests worldwide in the fall of 2012 with its anti-Islamic content. The video was even linked for a time to the attack on an American diplomatic compound in Benghazi, Libya, although that was later refuted.

"The Innocence of Muslims" includes a five-second performance from an actress named Cindy Lee Garcia, who says she was tricked into appearing in the film. Garcia sued Google under copyright law, insisting she had a copyright interest in her performance and demanding that Google take the video off YouTube and all other platforms. A district court refused to order the removal, noting that Garcia was not likely to succeed with her claim. A three-judge panel from the Ninth Circuit agreed that the claim was "debatable," but still ordered Google to remove all copies of "Innocence of Muslims" until the case was resolved.

"Based on an absurd copyright claim, the Ninth Circuit issued a order requiring an online platform to edit the historical record," said EFF Intellectual Property Director Corynne McSherry. "The ruling may have been well-intentioned, but it was both bad law and bad policy and that will have dangerous consequences for future creators."

The ruling shocked many in the legal and creative communities, and Google appealed the panel's ruling to the full Ninth Circuit. In an amicus brief filed in that appeal today, EFF argues that the panel's order violates basic legal procedure, ignores the public's free speech rights, and undermines core copyright principles.

"Ms. Garcia understandably wants to distance herself from this film. She was hoodwinked, and she has legal options to hold the producer of this film to account. However, copyright infringement is not one of those options," said EFF Staff Attorney Vera Ranieri. "If allowed to prevail, this case will prompt abuse of the copyright system and chill protected speech."

The American Civil Liberties Union, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, the Center for Democracy and Technology, New Media Rights, and Public Knowledge joined EFF in this brief.

San Francisco - The Ninth Circuit Court of Appeals ruled today that Proposition 35, a 2012 California ballot initiative that would have restricted the rights of registered sex offenders to communicate on the Internet, is likely unconstitutional. The opinion affirms an earlier district court ruling in Doe v. Harris, a lawsuit filed by the American Civil Liberties Union (ACLU) of Northern California and the Electronic Frontier Foundation (EFF) in 2012.

Proposition 35, also known as the Californians Against Sexual Exploitation Act (CASE Act), requires anyone who is a registered sex offender—even people with decades-old, low-level offenses whose offenses were not related to the Internet—to turn over a list of all their Internet user names and online service providers to law enforcement. Under the law, more than 73,000 Californians would have been forced to provide this information to the government, and report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations would have potentially resulted in years in prison.

"The Ninth Circuit has agreed that the onerous online speech restrictions required by Prop. 35 violate the First Amendment," said Linda Lye, senior staff attorney at the ACLU of Northern California. "The portions of Prop. 35 that unconstitutionally limit what people say online won't help us end human trafficking. Anonymity is key to protecting speech by unpopular or controversial groups and allowing robust political debate."

The ACLU of Northern California and EFF filed a lawsuit the day after the law was passed in 2012, challenging these reporting requirements as a burden on the First Amendment right to free and anonymous speech. A lower court agreed with the groups in January 2013 and issued a preliminary injunction, halting enforcement of the law. Today, the Ninth Circuit upheld that lower court ruling.

"[T]he CASE Act directly and exclusively burdens speech, and a substantial amount of that speech is clearly protected under the First Amendment," Ninth Circuit Judge Jay Bybee wrote in the opinion.

The court noted that the law was overly broad, affecting speech unrelated to sexual offenses, such as "blogging about political topics and posting comments to online news articles. " This creates the "inevitable effect of burdening sex offenders' ability to engage in anonymous online speech," Bybee wrote. The court also found that there was no evidence that throwing out this part of Proposition 35 would hamper the state's ability to investigate online sex offenses.

"We're pleased the court recognized important First Amendment principles of free and anonymous speech apply to everyone, regardless of what crimes they may have committed in the past," EFF Staff Attorney Hanni Fakhoury said. "While the law may be well-intentioned, its broad language opened the door for the government to chill free speech. Restrictions targeting sex offenders are often a stepping stone for the expansion of law enforcement power against other classes of unpopular people."

The court's ruling means the preliminary injunction prohibiting enforcement of the reporting requirements of the CASE Act remains in effect.

"This project should boost everyday data protection for almost everyone who uses the Internet," said EFF Technology Projects Director Peter Eckersley. "Right now when you use the Web, many of your communications—your user names, passwords, and browsing histories—are vulnerable to hackers and others. By making it easy, fast, and free for websites to install encryption for their users, we will all be safer online."

Currently, most Internet traffic is unencrypted, meaning most interactions you have with websites leave your accounts vulnerable to eavesdropping by everyone from a minimally competent hacker to the U.S. government. The HTTPS protocol—in contrast to HTTP—encrypts your connection and verifies the authenticity of sites, protecting your data and personal information. EFF has been campaigning successfully for a number of years to spread HTTPS from payment pages and banking sites to email, social networking, and other types of sites. But there are still hundreds of millions of domains that lack this protection.

The new Let's Encrypt project aims to solve that. Let's Encrypt is a new free certificate authority, which will begin issuing server certificates in 2015. Server certificates are the anchor for any website that wants to offer HTTPS and encrypted traffic, proving that the server you are talking to is the server you intended to talk to. But these certificates have historically been expensive, as well as tricky to install and bothersome to update. The Let's Encrypt authority will offer server certificates at zero cost, supported by sophisticated new security protocols. The certificates will have automatic enrollment and renewal, and there will be publicly available records of all certificate issuance and revocation.

Let's Encrypt will be overseen by the Internet Security Research Group (ISRG), a California public benefit corporation. ISRG will work with Mozilla, Cisco Systems Inc., Akamai, EFF, and others to build the much-needed infrastructure for the project and the 2015 launch.

"The Let's Encrypt certificate authority will dramatically increase the ability of websites around the world to implement HTTPS, increasing the security of hundreds of millions of Internet users every day," said Eckersley.

EFF Joins Local and National Groups in Call to Protect the Internet

San Francisco - The Electronic Frontier Foundation (EFF) is joining a broad coalition of local and national public interest groups for a rally and forum in support of strong net neutrality rules at San Francisco City Hall on Thursday, November 20, at 5:30 pm.

"Bay Area Speaks: A People's Hearing on the Future of the Internet" comes at a key moment in the debate over net neutrality. The Federal Communications Commission (FCC) has a proposal that does not provide full protections for the Internet and could vote to enact the plan early as December. Meanwhile, President Obama has issued a statement urging the FCC to change course and reclassify the Internet as a telecommunications service. This reclassification would be the best way to achieve strong rules against blocking, throttling, and paid prioritization online, and echoes the demands of millions of Americans who have submitted their own comments to the FCC over the last few months.

Former FCC Commissioner Michael Copps will be one of the speakers at Thursday's rally, along with EFF Intellectual Property Director Corynne McSherry and many others. The event is free and open to the public, and there will be time for community comment. The public testimony will be submitted to the FCC.

What:
"Bay Area Speaks: A People's Hearing on the Future of the Internet"

San Francisco - The Electronic Frontier Foundation (EFF) filed a brief with the Supreme Court of the United States today, arguing on behalf of 77 computer scientists that the justices should review a disastrous appellate court decision finding that application programming interfaces (APIs) are copyrightable. That decision, handed down by the U.S. Court of Appeals for the Federal Circuit in May, up-ended decades of settled legal precedent and industry practice.

Signatories to the brief include five Turing Award winners, four National Medal of Technology winners, and numerous fellows of the Association for Computing Machinery, IEEE, and the American Academy of Arts and Sciences. The list also includes designers of computer systems and programming languages such as AppleScript, AWK, C++, Haskell, IBM S/360, Java, JavaScript, Lotus 1-2-3, MS-DOS, Python, Scala, SmallTalk, TCP/IP, Unix, and Wiki.

"The Federal Circuit's decision was wrong and dangerous for technological innovation," EFF Intellectual Property Director Corynne McSherry said. "Excluding APIs from copyright protection has been essential to the development of modern computers and the Internet. The ruling is bad law, and bad policy."

Generally speaking, APIs are specifications that allow programs to communicate with each other. So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.

The brief explains that the freedom to re-implement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for example, mainframes, PCs, and workstations/servers—by ensuring that competitors could challenge established players and advance the state of the art.

The litigation began several years ago when Oracle sued Google over its use of Java APIs in the Android OS. Google wrote its own implementation of the Java APIs, but, in order to allow developers to write their own programs for Android, Google's implementation used the same names, organization, and functionality as the Java APIs.

In May 2012, Judge William Alsup of the Northern District of California ruled that the Java APIs are not subject to copyright. The court understood that ruling otherwise would have allowed Oracle to tie up "a utilitarian and functional set of symbols" that provides the basis for so much of the innovation and collaboration we all rely on today. The Federal Circuit disagreed, holding that Java's API packages were copyrightable, although it sent the case back to the trial court to determine whether Google's copying was nonetheless a lawful fair use.

"For decades, computer scientists and the courts have all understood that copyright doesn't protect APIs," EFF Special Counsel Michael Barclay said. "We hope that the Supreme Court will review this case and reverse the Federal Circuit's misguided opinion, which up-ended decades of industry practice and threatens the basic principles upon which our technology sector was built."

Longtime ED Shari Steele to Step Down After 22 Years at EFF

San Francisco - The Electronic Frontier Foundation's Legal Director Cindy Cohn will become EFF's new executive director in April, after Executive Director Shari Steele steps down from the post she's held for 14 years.

With more than 20 years at EFF, Steele has been a driving force of the organization since its earliest days. She has overseen the growth of EFF from a handful of staffers to a 60-person organization at the forefront of every major digital rights issue the world faces today. As executive director, she built a superstar team of attorneys, technologists, and advocates, cementing EFF's reputation as one of the most respected and fiercely independent groups working for technology users' rights. During Steele's tenure, EFF's yearly budget went from less than $1 million in 1999 to almost $9 million for the fiscal year 2014-2015, and membership grew from less than 2000 dues-paying members to over 24,000.

"I've spent most of my working life at EFF, and it's hard to imagine leaving this amazing group of people," said Steele. "I'm so incredibly proud of this organization. I will miss everybody terribly as my family relocates to the Seattle area."

"Shari has been the visionary behind EFF's evolution into the critically important institution it is today. She saw the expanding need for this organization and made sure we were always ready to do this work," said EFF Chairman of the Board of Directors Brian Behlendorf. "Cindy has also been instrumental to EFF's successes, and we're pleased she will continue this vitally important work as executive director."

Cohn has been involved with EFF for over 20 years, first working on Bernstein v. Department of Justice, the successful First Amendment challenge to U.S. export restrictions on cryptography. In 2000, Cohn became legal director, and her work included spearheading EFF's groundbreaking lawsuits challenging the NSA's illegal mass surveillance of Americans and people around the world. She has been named one of the 100 most influential lawyers in America in addition to numerous other honors.

"I have been so fortunate to have worked with Cindy Cohn for the past 20 years," said Steele. "Cindy is a brilliant lawyer, a charismatic leader, and a moral compass for the organization. I am confident that EFF will continue to thrive under her leadership."

"Cindy is one of the smartest lawyers I've ever known, and a great strategist," said EFF co-founder John Gilmore. "Cindy truly understands what makes EFF successful, and we're thrilled she will lead the organization."

EFF Intellectual Property Director Corynne McSherry will take over as legal director. McSherry has been at EFF for nearly 10 years, recently testifying to Congress about the problems with the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), arguing in the D.C. Circuit against copyright trolls, and leading EFF's fight for net neutrality. In addition to serving as legal director, McSherry will continue to lead EFF's intellectual property legal team.

EFF Senior Staff Attorney David Greene will become EFF's new civil liberties director. Before joining EFF last year, Greene had been executive director of the First Amendment Project and was a founding member of the Internet Free Expression Alliance.

EFF Deputy General Counsel Kurt Opsahl will become EFF's general counsel, a post formerly held by Cohn, and will also serve as EFF's deputy executive director with duties including being the primary liaison to the Development, Finance, Technology Ops, and Operations teams. Opsahl is EFF's lead attorney on its cases challenging National Security Letters (NSLs) and recently argued against the NSLs' unconstitutional gag provisions in the United States Court of Appeals for the Ninth Circuit.

"We have big shoes to fill with Shari leaving, but thanks to her and the deep team we've built, we're ready," said Cohn. "I look forward to leading EFF into this next chapter and to helping build the movement for digital rights into a force that speaks for people worldwide."

Steele will remain as EFF's executive director until April of next year. 2015 marks EFF's 25th anniversary.

EFF's 'Secure Messaging Scorecard' Rates Digital Communication Tools

San Francisco - In the face of widespread Internet data collection and surveillance, we need a secure and practical means of talking to each other from our phones and computers. Many companies offer "secure messaging" products - but how can users know if these systems actually secure? The Electronic Frontier Foundation (EFF) released its Secure Messaging Scorecard today, evaluating dozens of messaging technologies on a range of security best practices.

"The revelations from Edward Snowden confirm that governments are spying on our digital lives, devouring all communications that aren't protected by encryption," said EFF Technology Projects Director Peter Eckersley. "Many new tools claim to protect you, but don't include critical features like end-to-end encryption or secure deletion. This scorecard gives you the facts you need to choose the right technology to send your message."

The scorecard includes more than three dozen tools, including chat clients, text messaging apps, email applications, and technologies for voice and video calls. EFF examined them on seven factors, like whether the message is encrypted both in-transit and at the provider level, and if the code is audited and open to independent review. Six of these tools scored all seven stars, including ChatSecure, CryptoCat, Signal/Redphone, Silent Phone, Silent Text, and TextSecure. Apple's iMessage and FaceTime products stood out as the best of the mass-market options, although neither currently provides complete protection against sophisticated, targeted forms of surveillance. Many options—including Google, Facebook, and Apple's email products, Yahoo's web and mobile chat, Secret, and WhatsApp—lack the end-to-end encryption that is necessary to protect against disclosure by the service provider. Several major messaging platforms, like QQ, Mxit, and the desktop version of Yahoo Messenger, have no encryption at all.

"We're focused on improving the tools that everyday users need to communicate with friends, family members, and colleagues," said EFF Staff Attorney Nate Cardozo. "We hope the Secure Messaging Scorecard will start a race-to-the-top, spurring innovation in stronger and more usable cryptography."

The Secure Messaging Scorecard is part of EFF's new Campaign for Secure and Usable Cryptography, and was produced in collaboration with Julia Angwin at ProPublica and Joseph Bonneau at the Princeton Center for Information Technology Policy.

Ridiculous Exemption Process Forces Consumers to Beg for Basic Rights

San Francisco - The Electronic Frontier Foundation (EFF) filed six exemption requests with the U.S. Copyright Office today, part of the elaborate, every-three-year process to right the wrongs put in place by the Section 1201 of the Digital Millennium Copyright Act (DMCA). EFF's requests received crucial assistance from the Organization for Transformative Works, the NYU Technology Law & Policy Clinic, attorney Marcia Hofmann, and former EFF intern Kendra Albert.

Two of EFF's requests this year are on behalf of people who need to access the software in cars so they can do basic things like repair, modify, and test the security of their vehicles. Because Section 1201 of the DMCA prohibits unlocking "access controls"—also known as digital rights management (DRM)—on the software, car companies can threaten anyone who needs to get around those restrictions, no matter how legitimate the reason.

"The DMCA was supposed to help protect against copyright infringement, but it's been abused to interfere with all kinds of lawful activities that have nothing to do with infringement," said EFF Intellectual Property Director Corynne McSherry. "Software is in all kinds of devices, from cars to coffee-makers to alarm clocks. If that software is locked down by DRM, it's likely that you can't tinker, repair, and re-use those objects without incurring legal risk."

EFF's other requests this rulemaking include one for users who want to continue to play "abandoned" video games. For example, some users may need to modify an old video game so it doesn't perform a check with an authentication server that has since been shut down. EFF has also asked the Copyright Office to renew previous exemptions issued for jailbreaking smartphones, and extend them to tablets and other mobile devices—liberating them to run operating systems and applications from any source, not just those approved by the manufacturer. EFF also asked for renewal and partial expansion of the exemptions for remix videos that use excerpts from DVDs, Blu-Ray discs, or downloading services.

"These requests highlight some of the ways that Section 1201 of the DMCA has given the Librarian of Congress a veto on innovation and creativity," said EFF Staff Attorney Mitch Stoltz. "We and many other organizations will have to spend the next year begging the Copyright Office to make sure copyright law doesn't stop user choice and creative expression."

EFF's exemption requests are part of the regular rulemaking process from the Library of Congress and the Copyright Office. Congress created this system to act as a "safety valve" to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials. But that safety valve is hugely flawed. The every-three-year procedure is burdensome and confusing, with high hurdles to success. Even if an exemption is granted, supporters still have to come back to get it renewed or expanded, as technology develops.

"Technologists and artists should not have to get permission from Washington before they create, learn, and innovate, especially when the window to seek permission only comes once every three years," said EFF Staff Attorney Kit Walsh. "This rulemaking isn't the 'safety valve' we need to defend free speech and innovation from Section 1201. But until the law is fixed, we'll do our part to fight for those rights before the Copyright Office and in the courts."

Washington, D.C. - The Electronic Frontier Foundation (EFF) will appear before a federal appeals court next week to argue the National Security Agency (NSA) should be barred from its mass collection of telephone records of million of Americans. The hearing in Klayman v. Obama is set for 9:30 am on Tuesday, Nov. 4 in Washington, D.C.

Appearing as an amicus, EFF Legal Director Cindy Cohn will present oral argument at the U.S. Court of Appeals for the District of Columbia Circuit on behalf of EFF and the American Civil Liberties Union (ACLU), which submitted a joint brief in the case.

Conservative activist and lawyer Larry Klayman filed the suit in the aftermath of the first Edward Snowden disclosure, in which The Guardian revealed how the NSA was collecting telephone records on a massive scale from the telecommunications company Verizon. In December, District Court Judge Richard Leon issued a preliminary injunction in the case, declaring that the mass surveillance program was likely unconstitutional.

EFF argues that the call-records collection, which the NSA conducts with claimed authority under Section 215 of the USA PATRIOT Act, violates the Fourth Amendment rights of millions of Americans. Separately, EFF is counsel in two other lawsuits against the program—Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA—and is co-counsel with the ACLU in a third, Smith v. Obama.

Wordpress, NameCheap Receive Five Stars in New EFF Scorecard

San Francisco - The Electronic Frontier Foundation (EFF) today released a new report and scorecard that shows what online service providers are doing to protect users from baseless copyright and trademark complaints.

"When a private citizen or corporation wants to silence speech on a major online platform, the quickest method is often a copyright or trademark complaint," EFF Director of Copyright Activism Parker Higgins said. "EFF has worked for many years to help people whose speech is unfairly targeted by these sorts of complaints, and we've seen how important it is that speech platforms have policies that help protect lawful users."

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EFF examined 13 companies and issued stars if they met the baseline standards for what a service can do to defend its users' speech against copyright and trademark bullies. The services could receive a maximum of five stars, based on criteria including publicly documented procedures for responses to DMCA takedown notices and counter-notices, how the services handle trademark disputes, and if the company issued detailed transparency reports.

Automattic's Wordpress.com and NameCheap were the only two companies to receive five out of five stars. However, two other companies were recognized for going the extra mile: Etsy, for providing educational guides, and Twitter, for publishing regular and thorough transparency reports. Overall, 10 companies did not publish adequate transparency reports, highlighting an information black hole for consumers. Additionally, four companies missed a star for their counter-notice practices—a critical procedure for restoring content that may have been taken down without cause.

"Major online platforms are essential to online expression, so their policy decisions can have a huge impact on public discourse," EFF Intellectual Property Director Corynne McSherry said. "As users choose which platforms will host their updates, writing, images, and videos, they ought to know which of these services have publicly committed to treating their speech fairly and even helping them fight back against bullies that would try to take it down."

San Francisco - The Electronic Frontier Foundation (EFF) launched its updated "Surveillance Self-Defense" report today, a comprehensive how-to guide to protecting yourself from electronic spying for Internet users all over the world.

"Everyone has something to protect, whether its from the government or stalkers or data-miners," said EFF International Director Danny O'Brien. "Surveillance Self-Defense will help you think through your personal risk factors and concerns—is it an authoritarian government you need to worry about, or an ex-spouse, or your employer?—and guide you to appropriate tools and practices based on your specific situation."

Surveillance Self-Defense includes briefings on important security issues, tutorials on using specific privacy software like PGP and OTR, and guides for specific categories of users, like human rights activists or journalism students. People who are just beginning to upgrade their communications privacy can choose the "Security Starter Pack."

"The Internet and other electronic communications have empowered people all over the globe to speak out and make connections in world-changing ways," said EFF Director for International Freedom of Expression Jillian York. "But this has also opened new opportunities for tracking and exposure. Surveillance Self-Defense will teach you to think critically about your Internet use and make good choices even as the technology changes around you."

Surveillance Self-Defense was first launched in 2009, aimed at educating Americans about the law and technology of communications surveillance. The new report expands, revises, and updates the old guide for use across the globe with support from the Ford Foundation. EFF spoke and worked with experts and activists from across the world, from MIT to the Middle East, in developing the guide. The entire Surveillance Self-Defense project is available in English, Spanish, and Arabic, with more languages available soon.

San Francisco - The Electronic Frontier Foundation (EFF), along with reddit and the Internet Archive, today filed formal comments with the New York State Department of Financial Services opposing the state's proposed regulations for digital currencies such as Bitcoin. In the letter, EFF argues that on top of damaging privacy and harming innovation, New York's "BitLicense" regulatory scheme also risks infringing on First Amendment rights to freedom of expression and association.

The State of New York is currently considering BitLicense, a sprawling regulatory framework that would mandate licenses for a wide range of companies in the digital currency space. The regulations would force applicants to submit significant personal information to the state, including fingerprints and head-shot photographs. The policy would also require these companies to maintain detailed records about all transactions for 10 years, including identity data of users.

"Digital currencies such as Bitcoin strengthen privacy and are resistant to censorship," EFF Activism Director Rainey Reitman said. "We should consider this a feature, not a bug; it's an innovative way of importing some of the civil liberties protections we already enjoy offline into the digital world."

EFF notes that digital currency protocols are used for more than just payments—they have expressive and associational uses, too. Bitcoin-like systems are used for organizing and engaging with groups or communities. In addition, Bitcoin block chains frequently contain political speech, such as famous quotes and portraits of prominent historical figures. As currently written, EFF argues, the BitLicense regulations place an unacceptable burden on free speech and association.

"The courts have long recognized that code is speech protected by the First Amendment," EFF Special Counsel Marcia Hofmann said. "At their core, digital currency protocols are code. Attempts to regulate code must include robust protections to ensure constitutionally protected speech is not stifled, and the BitLicense proposal would undermine those First Amendment principles."

On Oct. 15, EFF launched an online activism campaign encouraging Internet users to oppose the BitLicense proposal by submitting comments to the New York State Department of Financial Services.

Sites Highlight How Opponents of Mass Surveillance Around the World Lead by Example

San Francisco - The Electronic Frontier Foundation (EFF) today launched IFightSurveillance.org, a new site showcasing digital privacy advocates from around the world who are leading the fight against mass surveillance. The site includes figures from the organization's growing list of Counter-Surveillance Success Stories, a set of guides showing how individuals and organizations have taken on state and corporate spying in their own countries—and won.

Anne Roth, whose own unjust surveillance by German law enforcement led her to work for better protections for her fellow citizens.

"Too often, the debate over surveillance is seen as a 'domestic' issue, only of concern to citizens of the country doing the spying," EFF International Director Danny O'Brien said. "The truth is that mass surveillance isn't confined to national borders, and neither is the response to it. Technologists, activists, and Internet users are all working to fight back against mass surveillance. Wherever you are, whoever you are, there are people close to you working to stop the spying, and you can join them."

The site provides five concrete steps activists can take, including using encryption software to protect themselves, supporting a decentralized Internet, and signing onto the 13 "Necessary and Proportionate Principles," a global framework to protect human rights in an age of mass surveillance. Visitors are encouraged to use the site's social media tools to share their stories of standing up for privacy and to learn about the more than 400 privacy rights organization that have endorsed the 13 principles.

IFightSurveillance.org's companion site, Counter-Surveillance Success Stories (http://www.eff.org/csss), delves into greater detail about the work of the global coalition, spotlighting battles for privacy in Zimbabwe as well as countries across North America and Europe.

Update: The court announced early Wednesday that it will not livestream the audio of the NSL case. Audio available here http://www.ca9.uscourts.gov/media/view.php?pk_id=0000013407.

San Francisco, CA - The Electronic Frontier Foundation (EFF) will urge a federal appeals court next week to uphold a groundbreaking ruling that the National Security Letter (NSL) provisions of the USA Patriot Act are unconstitutional. The hearing is set for 9 a.m. on October 8 in San Francisco.

Months before Edward Snowden kicked off the international debate over electronic surveillance, EFF scored a major victory when a federal judge ordered the FBI to cease its practice of issuing NSLs—demands to telecommunication providers to provide information about their users that are not approved in advance by a judge.

The lower court found that the gag orders, which are almost always issued by the FBI in tandem with the NSLs, violate the First Amendment. In EFF's cases, these gag orders have forced EFF's clients to keep their identities hidden, preventing them from discussing the NSLs publicly or even revealing their involvement in this case. The court also found that the limited, after-the-fact judicial review procedures violate the separation of powers.

EFF Senior Staff Attorney Kurt Opsahl will deliver oral arguments at the hearing at the United States Court of Appeals for the Ninth Circuit. Audio of the arguments will be live streamed through the court's website. The identity of the clients will not be disclosed in Wednesday's hearing.

Contact:

No Single Country Should Have Veto Power Over Global Search Results

Vancouver, Canada - The Electronic Frontier Foundation (EFF) filed a brief with the British Columbia Court of Appeal in Canada on Monday weighing in on a ruling that Google must block certain entire websites from its search results around the world.

EFF intervened in Equustek Solutions v. Morgan Jack after a trial court ruled in June that Google must remove links to full websites that contained pages selling a product that allegedly infringed trade secret rights. The injunction not only applied to Google's Canada-specific search, Google.ca, but to all of its searches around the world. Google had offered to remove 345 URLs but would not block the entire category of websites, because they contained pages that "may be used for any number of innocent purposes."

Such a broad injunction sets a dangerous precedent, especially where the injunction is likely to conflict with the laws of other nations. In its brief, EFF explains how the trial court's injunction decision would have likely violated the U.S. Constitution and constituted an improper "mandatory injunction" under case law in California, where Google is based. By blocking entire websites, Canadian courts potentially censor innocent content that U.S. Internet users have a constitutional right to receive.

"The scope of the Canadian court's order could chill speech across the Internet," EFF Staff Attorney Vera Ranieri said. "If a Canadian court is able to block search results around the world, it sets a precedent that nations with authoritarian restrictions on speech can also impose their own rules on the global Internet."

"We hope the court considers how the ruling affects the public interest in free expression," EFF Intellectual Property Director Corynne McSherry said. "No single country should have veto power over Internet speech."

EFF filed the brief with the assistance of pro bono counsel David Wotherspoon of Fasken Martineau DuMoulin, LLP. The appeal will be argued over three days in the last week of October.

Tidbit was designed to serve as an alternative to viewing online advertising by allowing website users to help mine Bitcoins for the site they're visiting instead. It was developed in late 2013 by Jeremy Rubin and fellow classmates at MIT for the Node Knockout Hackathon, where the program ultimately won an award for innovation. The creators never made the program fully functional, serving only as a "proof of concept."

In December 2013, the New Jersey Division of Consumer Affairs issued a subpoena to Rubin, requesting he turn over Tidbit's past and current source code, as well as other documents and agreements with any third parties. It also issued 27 formal written questions requesting additional documents and ordering Rubin to turn over information such as the names and identities of all Bitcoin wallet addresses associated with Tidbit, a list of all websites running Tidbit's code, and the name of anybody whose computer mined for Bitcoins through the use of Tidbit.

EFF represents Rubin and Tidbit in opposing the unjustifiably broad subpoena. In court, Fakhoury will argue three points:

- The State of New Jersey's attempts to target out-of-state activity is unconstitutional.

- New Jersey has no jurisdiction over Rubin or Tidbit.

- If the subpoena is upheld, Rubin and Tidbit must receive immunity. Otherwise, the court would be forcing Rubin and Tidbit to testify against themselves in violation of the Fifth Amendment to the U.S. Constitution and New Jersey state law.

"While the state certainly has a right to investigate consumer fraud, threatening out of state college students with subpoenas isn't the way to do it," Fakhoury said. "The students have disbanded their award-winning project. As MIT students and faculty have warned, the fear that any state can issue broad subpoenas to any student anywhere in the country will have a chilling effect on campus technological innovation beyond Tidbit."

The anti-circumvention language of Section 1201 of the DMCA has been used to threaten those who unlock or jailbreak their phones, block aftermarket competition in toner cartridges and video came console accessories, and narrow the public's fair use rights. In her testimony Wednesday, McSherry will argue that the costs of this law far outweigh the benefits, and that best way to fix Section 1201 is to get rid of it entirely. Short of that, the anti-circumvention provisions should be reformed so that it is focused clearly on copyright infringement.

Wednesday's hearing is part of the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet.

EFF Takes on Net Neutrality's Critics in New Comments to FCC

San Francisco - The Electronic Frontier Foundation (EFF) urged the Federal Communications Commission (FCC) today to see through misinformation from Internet service providers (ISPs) and protect the open Internet.

EFF's formal response to the ISPs' claims are part of the FCC's public comment period for its proposed new rules that would allow for so-called "Internet fast lanes" – a dangerous plan that would allow unfair Internet traffic discrimination and undermine net neutrality. The FCC has received over 1.7 million comments on the issue, with over 127,000 delivered through EFF's DearFCC.org comment tool.

"The FCC is going down a dangerous path, risking future Internet expression and innovation, and the big ISPs are encouraging the commission every step of the way," said EFF Intellectual Property Director Corynne McSherry. "Will the FCC respond to the pleas of more than a million Internet users and do its part to protect net neutrality? Or will it open the door to a tiered Internet, with ISPs serving as gatekeepers for their subscribers?"

In comments submitted today, EFF reiterated that the FCC must reclassify broadband as a "common carrier" service, which would allow the commission to enforce rules like the ones that insure fair and equal telephone service. Some ISPs, including cable Internet provider Comcast, have argued against the reclassification, telling the FCC that a recent court decision gives the commission all it needs to protect the open Internet. But that claim is based on a complete misreading of the court's ruling.

"What the court actually said was that the current classification of the Internet would not allow the FCC to ban unreasonable discrimination of network traffic," said EFF Staff Attorney Mitch Stoltz. "The court gave the FCC a roadmap for protecting the open Internet, and it starts with reclassification, not preserving the status quo."

ISPs' comments to the FCC also fought against service-performance transparency, claiming detailed information about network traffic would confuse consumers instead of helping them—essentially arguing that consumers were too uninformed to know what was good for them. Another outrageous claim came from cell phone providers responding to calls from EFF and others to handle mobile Internet traffic without discrimination. The providers argued that there was no current problem in the mobile space, despite obvious examples like AT&T blocking the FaceTime app.

"The Internet is an unprecedented global platform for free expression, commerce, and communications of all kinds. We can't let a few powerful companies throttle it," said EFF Staff Technologist Jeremy Gillula. "The FCC must correct its course and protect our access to this invaluable resource."